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It is further assigned that the conclusions of law and judgment as made by the court do not follow from the findings, and also that the findings are inconsistent with each other. The court found that Pettit & Son. on January 20, 1906, gave to appellants a written receipt for $100, as a payment upon the purchase price; the writing also containing other data concerning the terms of the purchase. It stated the aggregate purchase price as $6,600. Eight hundred dollars was to be paid in cash, and the balance in deferred payments. An abstract of title was to be furnished, and five days allowed for its examination. It was also stated that if the title was not good, and could not be made good, then the agreement should be void; but if found to be good, and not accepted by the purchaser. the earnest money should be forfeited. Time was made the essence of the agreement, and it was also stated that it was made subject to the owner's approval. It was also found that the property was listed for sale with Pettit & Son by the defendant Perry. foregoing was found with reference to what took place on January 20th, and it was fur ther found that on January 22d said Perry contracted to sell the property to the appellants. by a written contract of sale executed and delivered on that date; that the further sum of $700 was then paid, completing the first payment of $800. The terms of sale were set forth in the contract as in the memorandum of January 20th. The lots were owned by one William Pigott, at all times mentioned, and it was found that he was at all times realy, willing, and able to convey; that on January 15th Pigott authorized M. B. Crane & Co. to sell the property, which authorization continued until after the commencement of this action; that prior to the execution of the said contract from Perry to appellants, M. B. Crane & Co. executed their contract of sale to Perry, and the same was ratified by Pigott; that at the time the $100 was paid and the memorandum receipt given, on January 20th the appellants understood, and it was so represented, that Perry was the owner; but that before the execution of the contract of January 22d, when the further payment of $700 was made, appellants were apprised that Perry had only a contract to purchase from the owner. Appellants, having failed to make subsequent payments, claimed that the examination of the abstract disclosed that Perry was not the owner, that the title was not therefore good, and that appellants were for that reason released from further obligations and entitled to a return of the $800 already paid. The same contention is made here. But it will be seen that the court found that appellants knew when they paid the $700 that Perry was not the owner, and that he had only a contract of sale. Whatever may have been their understanding in the first instance, they learned the facts before they completed
the $800 payment. We find no inconsistency in the findings. When the subsequent examination of the abstract disclosed that Perry was not the owner, it merely disclosed what appellants already knew, and what they knew when they completed their contract of purchase of January 22d. The disclosures of the abstract therefore furnished no excuse for not making the subsequent payments, since the court found that the owner was at all times ready, able, and willing to convey. Time having been made the essence of the contract, and it having been provided that payments made should be forfeited in default of making other payments, it follows that appellants are not entitled to recover the payment made, and that the judgment follows from the court's findings.
The judgment is affirmed.
FULLERTON, ROOT, and CROW, JJ.,
(18 Okl. 555)
NATIONAL BANK OF COMMERCE v.
(Supreme Court of Oklahoma. June 25, 1907.) 1. CHATTEL MORTGAGES-LIEN-RECORDING.
valid recorded mortgage removes the chattels Where the owner of chattels covered by a without the knowledge or consent of the mortgagee to another county, it is not necessary for the mortgagee, in order to preserve the lien, to file the mortgage or a copy thereof for registry in the county to which the property is removed. [Ed. Note. For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, § 166.]
2. SAME PRIORITIES AGISTER'S LIEN,
The lien of a prior valid recorded chattel mortgage will take precedence over the subsequently acquired lien of a livery stable keeper or agister upon animals placed in his charge, unless such animals were delivered to such lienholder to be kept and cared for by him with the consent of the mortgagee.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, § 235.]
3. CONSTITUTIONAL LAW-VESTED RIGHTSOBLIGATION OF CONTRACTS.
An act of the Legislature, which postpones an existing valid mortgage lien and makes a subsequently created lien superior to the mortgage lien, is a law impairing vested property rights and impairing the obligations of a contract, and is void for conflict with the Constitution of the United States.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Constitutional Law, §§ 181, 494.] (Syllabus by the Court.)
Error from District Court, Pawnee County: before Justice Bayard T. Hainer.
Action by the National Bank of Commerce against Ben Jones. Judgment for defendant, and plaintiff brings error. Reversed.
Wrightsman & Fulton and James B. Diggs, for plaintiff in error.
BURFORD, C. J. One I. S. Jones was a resident of Payne county, Okl., and there owned and kept one gray horse, valued at
$60. On December 6, 1900, he executed to the National Bank of Commerce at Stillwater a chattel mortgage upon said horse to secure the payment of the sum of $59.50, due September 6, 1901, and bearing 12 per cent. interest after maturity. This mortgage was filed for record in the office of the register of deeds of Payne county on the same day it was executed. On October 6, 1901, the horse was left in the possession of the defendant Ben Jones, at Ralston, in Pawnee county, Okl., without the knowledge or consent of the mortgagee. Ben Jones was the keeper of a feed barn, and kept and fed the horse until the commencement of this action, at which time there was due him for feed and care of the horse, as found by the court, the sum of $25. The mortgagee demanded possession of the horse in December, 1901, and Jones refused to deliver possession until the feed bill was paid. The mortgagee refused to pay this bill, and on December 10, 1901, began this action in replevin before the probate court of Pawnee county. The horse was taken on the writ of replevin and delivered to the plaintiff, who retains possession. On the trial in the probate court it was held that the mortgagee could not recover, and the horse was ordered returned to the defendant. Appeal was taken to the district court of Pawnee county, and the cause there tried to the court, and judgment rendered sustaining the lien of the defendant for feed and care for the sum of $25, which the plaintiff was ordered to pay, or, on default in payment, to return the horse. This judgment was rendered upon the express holding by the trial court that the lien for feed and care was superior to the mortgage lien. The bank, the mortgagee, brings the case here for review, and the sole question for determination is: Which is the superior lien, that of the mortgage to the bank, or that for feed and care claimed by the liveryman?
It is said in the brief that the trial court held that the bank had lost its lien by a failure to have the mortgage filed for record in the office of the register of deeds of Pawnee county after the horse was removed from Payne county. Such is not the law. When the owner of the horse, who resided and kept the horse in Payne county, executed a mortgage upon the horse, and it was duly filed for record in such county, the mortgage lien became effective against all persons who subsequently dealt with the property, and a removal of the property by the mortgagor without the consent or connivance of the mortgagee would not affect the validity of the mortgage lien. It is said in Jones on Chattel Mortgages, § 269: "The removal of a mortgagor from the town or county in which he resided when the mortgage was executed, and where it was duly recorded, and the taking of the mortgaged property with him, does not invalidate the record of the mortgage, or necessitate the recording of it again in the town or county to which he
has removed. The object in requiring a record of the mortgage is to give publicity t it, and to provide a source of information common to all persons, so that they may determine, with some degree of facility, convenience, and certainty, the question of title to the property whenever they may be interested to know it, while at the same time it is not among the purposes of the recording acts to subject a bona fide mortgagee to the inconvenience of the constant vigilance and ceaseless watching which would be requisite to guard and secure his interests if he were obliged to record his mortgage in every town into which the mortgagor might see fit to remove with the property. If he were required to do this, his security would be well-nigh worthless; for before he could do this a creditor of the mortgagor might seize the property by process of law or the mortgagor himself might pass the title to it by way of sale to an innocent purchaser." And this rule is sustained by abundant authority. See, also, 6 Cyc. 1088, 1089, and authorities there cited.
The next contention is that the lien for feeding and caring for the horse is superior to that of the mortgage. The weight of authority is to the effect that a lien for feeding and caring for domestic animals is not superior to the lien created by a prior valid recorded mortgage. 1 Jones on Liens, § 691. It is also stated in 19 Am. & Eng. Enc. (2d Ed.) p. 438: "It is held by the overwhelming weight of authority that the lien of a prior valid recorded chattel mortgage will take precedence over the subsequently acquired lien of a livery stable keeper or agister upon animals placed in his charge, unless such animals were delivered to the livery stable keeper or agister to be kept and cared for by him with the consent of the mortgagee." The Supreme Court of Kansas has adopted a rule to the contrary in a number of cases, but the authorities generally are not in accord with the decisions of that court. But it is said that our statute changes the general rule, and that in this case the mortgage lien must be held inferior to the lien of the agister. This cannot be. The statute referred to was adopted February 28, 1901, almost three months after the mortgage had become a valid lien and the rights of the mortgagee completely vested. This statute (chapter 3, p. 43, Sess. Laws 1901) is as follows:
"Section 1. That any person or persons employed in feeding, grazing or herding any domestic animals, whether in pasture or otherwise, shall for the amount due for such feeding, grazing or herding have a lien on said animals."
"Sec. 3. All liens not to exceed in the aggregate twenty-five per cent. of the value of such animals against any domestic animal or animals for labor, grazing, herding or feeding, or for corn, feed, forage or hay, furnished the owner of such domestic animals
as herein provided and actually used for such purpose, shall be prior to all other liens thereon, and no recital or stipulation in any mortgage or other incumbrance on any cattle so fed shall be held to supersede or vitiate the lien here provided for."
The Constitution of the United States, which is the supreme and paramount law of the land and controlling upon all bodies, ei-. ther legislative or judicial, within the territories, in article 1, § 10, provides: "No state shall pass any law impairing the obligation of contracts." And by the provisions of the organic act this provision of the Constitution, as well as all others not locally inapplicable, is put in force in this territory. Organic Act St. 1890, § 28. An act of the Legislature which seeks to impair the obligation of a contract, or to impair or destroy vested property rights, is unconstitutional and void. Toledo Railroad Co. v. Hamilton, 134 U. S. 296, 10 Sup. Ct. 546, 33 L. Ed. 905; Crowther v. Fidelity Ins. Co., 85 Fed. 43, 29 C. C. A. 1; Yeatman v. King, 2 N. D. 428, 51 N. W. 721, 33 Am. St. Rep. 797; Kilpatrick v. Kansas City, etc., R. R. Co., 41 Am. St. Rep. 758, note; Giles v. Stanton, 85 Tex. 620; 1 Jones on Liens, § 701. These authorities lay down the doctrine that a mortgage lien constitutes a vested property right, and after it has attached the Legislature has no power to create a lien superior to the vested interest, or to provide that such vested lien shall be made inferior to a lien subsequently created; and we think this rule sound, and in harmony with reason and justice.
The judgment of the district court is reversed, at the costs of defendant in error, with directions to vacate and set aside the judgment in favor of the defendant and to enter judgment for the plaintiff that it was entitled to the possession of the horse at the time it commenced its action and for its costs. All the Justices concur, except HAINER, J., who tried the case below, not sitting.
(18 Okl. 561)
FRANTZ et al. v. AUTRY.
to the Constitution of the United States and the principles of the Declaration of Independence, that no distinction shall be made on account of race or color, and that the convention shall by ordinance irrevocable accept all the terms and conditions in the enabling act. 4. SAME COUNTIES-CREATION.
The power vested in the convention to form a state government clearly implies the power to create and define all the counties within the limits of the proposed state, the only limitation upon the convention in this respect being that the Osage Indian Reservation shall remain a separate county until the lands therein are allotted in severalty, and until changed by the Legislature of the state. 5. COUNTIES-DEFINITION.
A "county" is one of the territorial divisions of the state created for public and political purposes connected with the administration of the state government.
6. CONSTITUTIONAL LAW - STATES STATE
Officers for a full state government, under the terms of the enabling act, include not only state officers whose powers and duties are coextensive with the limits of the state, but includes all the officers provided for in the Constitution, from the highest to the lowest, whose duties are in any manner connected with the administration of the state government. 7. SAME CONSTITUTION-SUBMISSION TO PEO
Congress, by the express terms of the enabling act, conferred the power and authority upon the convention to pass appropriate ordinances for submitting the Constitution to the people for ratification or rejection at an election to be held at a time fixed in said ordinance. 8. SAME-ORDINANCES.
An ordinance, as used in this act, means a law which is essential to carrying into effect merely the objects for which the convention was created. Such an ordinance, when once adopted by the convention, has the force and effect of law.
9. SAME INJUNCTION-JURISDICTION - CONSTITUTIONAL CONVENTION.
A court of equity has no power or jurisdiction to restrain or enjoin the constitutional convention, its officers or delegates, from exercising any of the rights, powers, and obligations confided to it by Congress or the people; nor can the powers of the court be invoked to restrain or enjoin the submission of the Constitution, or any proposition contained therein, to a vote of the people in advance of its adoption and ratification by the people and its approval by the President of the United States, on the ground that the proposed Constitution, or any of its provisions, is unconstitutional, or that the
(Supreme Court of Oklahoma. June 25, 1907.) convention acted in excess of its lawful powers.
1. CONSTITUTIONAL LAW CONSTITUTION DEFINITION.
A "constitution" is the written instrument by which the fundamental powers of the government are established, limited, and defined, and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic. 2. SAME-CONSTITUTIONAL CONVENTION.
The constitutional convention is vested with the power and charged with the duty and responsibility of forming a Constitution and state government, and in the performance of such duties it exercises legislative powers and functions. [Ed. Note.--For cases in point, see Cent. Dig. vol. 10, Constitutional Law, § 1.]
The convention has, and can exercise, plenary powers, subject to the limitations and restrictions that the Constitution shall be republican in form, that it shall not be repugnant
10. SAME LEGISLATIVE POWERS - DELEGATION TO EXECUTIVE-JUDICIAL REVIEW.
The Constitution of the United States guaranties to every state a republican form of government, and the power to determine whether the Constitution is republican in form is primarily a legislative power, and resides in Congress. But this power was delegated by Congress to the President of the United States, and such question is not subject to judicial cogni
Irwin, J., dissenting, and Burwell, J., dissenting in part.
(Syllabus by the Court.)
Error from District Court, Woods County; before Justice John L. Pancoast.
Action by G. E. Autry against Frank Frantz, Governor of Oklahoma, and others. Judgment for plaintiff, and defendants bring error. Reversed and dismissed.
On June 16, 1906, the Congress of the United States passed an act entitled "An act to enable the people of Oklahoma and of the In dian Territory to form a Constitution and state government and be admitted into the Union on an equal footing with the original states," etc. Act June 16, 1906, c. 3335, 34 Stat. 267. Under and in conformity with the provisions of this act, members of the constitutional convention were elected, and the convention was duly organized; W. II. Murray being elected its president. and John M. Young its secretary. Thereupon the convention proceeded to the forming of a Constitution and state government, and an ordinance for the submission of the same to the qualified voters of the proposed state of Oklahoma for ratification or rejection, August 6, 1907, being the date fixed by said ordinance for the holding of such election, and which ordinance also provided for the election of all state, district, county, and township officers, including the members of the Legislature and five Representatives to Congress. It was also provided that within 20 days after the adoption of such Constitution and ordinance by the constitutional convention, which was done on April 22, 1907, the Governor of Oklahoma should issue a proclamation calling an election for the 6th day of August, 1907, in the manner prescribed by said ordinance; and that, if the Governor should fail or neglect to call such election, then the president of the constitutional convention was authorized to issue such proclamation. Woods and Woodward counties are organized and existing counties of the territory of Oklahoma, and have been such since the opening of the Cherokee Outlet to settlement in 1893; each of said counties having a full complement of county, township, and city officers. It is proposed by the constitutional convention, by one of the provisions of the Constitution, to divide the territory which has heretofore composed Woods County into three parts: a portion of the eastern part of said county being designated and established as Alfalfa county, a portion of the southern part as Major county, and the remainder of said county of Woods, together with several congressional townships taken from Woodward county, is designated as Woods county. This action of the convention provides for the establishment of two entirely new counties, to wit, Alfalfa and Major, which do not, at the present time, exist as counties in the territory of Oklahoma. By the terms and provisions of the election ordinance, three persons are named and appointed as county commissioners, and one person as county clerk, for each of said Alfalfa and Major counties. The counties are divided into municipal townships and commissioners' districts, to conform to such divisions in the other counties of Oklahoma. and it is further provided in said ordinance that: "Said county commissioners shall on or before the 8th day of June. A. D. 1907, di
vide or designate the townships of their respective counties into election precincts and establish the boundaries of the same, and shall designate a polling place in each precinct, and appoint all necessary inspectors of election in the several precincts, whose duties shall be the same as inspectors of elev tion under the laws of the territory of Oklahoma, and shall also perform all other duties required to be done or performed by the boards of county commissioners pertaining to elections under the laws of the territory of Oklahoma for elections therein, and shall perform all other duties or acts necessary to the conduct of said elections."
This action was commenced in the district court of Woods county by G. E. Autry, a taxpayer and member of the board of county commissioners of said county, against Frank Frantz, Governor of Oklahoma, and W. II. Murray, president of the constitutional convention, John M. Young, secretary thereof. and the other defendants as the said designated county commissioners and county clerks of the counties of Alfalfa and Major, to enjoin the said Frank Frantz, W. H. Murray, and John M. Young from issuing or publishing any proclamation in which said proclamation it is proposed to submit to the electors of the proposed state of Oklahoma, either as a part of the proposed Constitution or as a separate ordinance, any clause or provision dividing, or purporting to divide, Woods county, or changing or in any wise interfering with any township or precinct therein, and to enjoin and restrain the said C. I. Overstreet, C. II. Chowning, C. M. Delzell, M. R. Mansfield, Charles Bowman, J. C. Major. I. J. Corwin, and Charles B. Powell from in any wise interfering with or usurping, or attempting to usurp, any of the duties of the county commissioners or county clerk, or any or either of them, of the county of Woods, in or about the said proposed election or any of the preparations therefor, at or in any part of the territory of the county of Woods as now described and existing, and from in any wise acting, or attempting to act, in any capacity or to any extent in any election to he held in the said pretended counties of Alfalfa and Major, or either of them. In the absence of the district judge from the county, application was presented to the probate judge of Woods county, and a temporary order of injunction was granted as prayed for in the plaintiff's petition. Defendants in Che court below, appellants here, interposed a demurrer to the petition, for and upon the grounds that the plaintiff had no legal capacity to sue; that the court had no jurisdiction of the subject-matter of the action; and that the petition did not state facts sufficient to constitute a cause of action. At the same time a motion to dissolve the temporary injunction was filed, for the reasons and upon the grounds above stated, and in addition thereto alleging that the defendants and each of them are only attempting to per
form those acts and duties legally imposed to which the defendants, and each of them, upon them by the ordinance of the constitutional convention, and that the convention organized under the laws of Congress has legal power and authority to provide by ordinance for the performance of the duties which are imposed upon them. Upon the presentation and hearing of the demurrer and the motion to dissolve the temporary injunction, the court overruled the same, and held: That the plaintiff had the legal capacity, as a citizen and taxpayer, to maintain this action; that the constitutional convention had no powers conferred upon it, except powers as are expressly conferred upon it by the enabling act, and such powers as are incidentally necessary to carry into effect the objects and purposes of such act, and denied the power of the convention to divide Woods county, and create new counties thereof, and that the convention, in that respect, acted beyond its express or implied powers: and further held that the convention had no power to provide for the election of county or township officers at the time the Constitution is submitted to the voters of the proposed state of Oklahoma for their ratification or rejection.
The defendants thereupon filed a general denial, and the cause was submitted to the court on an agreed statement of facts, prac tically as above stated, and the court thereupon rendered the following final judgment in said cause: "Now, on this 8th day of May, 1907, the parties to the above-entitled cause appeared in open court, by their respective attorneys, and said cause was presented to the court upon the motion of the defendants to dissolve, vacate, and set aside the temporary injunction herein, and upon the demurrer to the plaintiff's petition. cause was duly argued and fully presented and by the court taken under advisement until the 13th day of May, 1907. Thereupon, on the 13th day of May, 1907, the parties all appeared by their respective counsel as heretofore, and the court, being duly advised in the premises, finds that the said motion to dissolve the temporary injunction should be overruled, and also that the demurrers presented to the plaintiff's petition should each be overruled; to each and all of which rulings the defendants, and each of them. duly excepted. Thereupon, by leave of court, the defendants filed their answer herein, and the plaintiff filed and presented his motion to strike out the second paragraph of said answer, which motion. being duly presented. was by the court overruled; to which the plaintiff excepted. Thereupon said cause was duly presented and submitted to the court for final determination and judgment upon the agreed statement of facts and the evidence offered, and upon such submission the court, after due consideration, finds all of the issues in favor of the plaintiff and against the defendants and each of them;
duly excepted. It is therefore by the court considered, ordered, and adjudged that the demurrers of the defendants and each of them separately be, and the same are hereby, overruled; to which the defendants, and each of them, duly except. It is further considered. ordered, and adjudged by the court that the motions of the defendants, and each of them separately, to vacate and set aside the temporary injunction heretofore granted be, and the same is by the court hereby, overruled; to which the defendants, and each of them, separately duly except. It is further by the court considered, ordered, and adjudged that the temporary injunction heretofore granted herein be, and the same is hereby, made perpetual, and that the defendants Frank Frantz, W. H. Murray, and John M. Young be, and they are hereby, enjoined and restrained from issuing or publishing any proclamation in or by which said proclamation it is proposed to submit to the electors of the proposed state of Oklahoma, either as a part of the proposed Constitution for said state of Oklahoma, or as a separate ordinance, any clause, provision, or proposition dividing, or pretending to divide, Woods county, in said territory of Oklahoma, or changing, or pretending to change, the lines and boundaries of the said county, or making, or purporting or pretending to make, or describe or bound any new county or counties out of any part of the present territory of the said Woods county, or changing or in any wise interfering with the said county or the lines thereof or any townships or precincts therein, or any or either of the lines of the said township or precincts; and enjoining and restraining the said C. I. Overstreet. C. H. Chowning. C. M. Delzell, M. R. Mansfield, Charles Bowman, J. C. Major, I. J. Corwin, and Charles B. Powell from in any wise interfering with any of the duties of the county commissioners or county clerk, or any or either thereof, of the said county of Woods, in or about the election proposed to be held in said county on the 6th day of August, 1907, and from in any wise interfering with the duties of the said county commissioners or county clerk of said county of Woods, as the same is now described and exists, in any of the preparations of any kind or character for said election, and enjoining and restraining them from acting. or attempting to act. in any capacity or to any extent in any election to be upheld in the pretended counties of Alfalfa or Major. or either thereof, and that the defendants pay the costs herein, taxed at dollars; to
all and each part of which the defendants, and each of them, duly except. Thereupon the defendants, and each of them separately. present their motion for a new trial of said cause, which motion is by the court, after due consideration, overruled: to which the defendants, and each of them, duly except.